View full sizeExpress-Times Photo | BILL ADAMSPohatcong Township patrolman Frank Pagano, right, sits with attorney Jeffrey G. Garrigan today prior to the start of the second day of his trial at the warren County Courthouse.

When Warren County Assistant Prosecutor Kevin Brotzman asked for the dismissal of the weapons case against Orion Gray in 2008, he did so because the credibility of Sgt. Frank Pagano, a key witness in the case, was compromised, according to Brotzman's testimony this morning.

The New Jersey Attorney General's Office says Pagano lied to cover up an unlawful search, but Pagano's defense attorney, Jeffrey Garrigan, argues that his client simply did not remember all the details of the stop after having to complete a report from memory days after the arrest.

Garrigan argues that late revelation that a working tape of the arrest existed proves that some members of the Pohatcong Township Police Department conspired to keep the evidence from Pagano.

Brotzman, the lead prosecutor in the case against Gray, says he learned in January 2008 that a tape from Pagano's patrol car had been located.

Brotzman said he saw "significant discrepancies" in the video of the arrest compared with what Pagano testified had occurred. Among the inconsistencies was a conversation prior to the search in which Pagano explained why he was going to look in the car and one afterward that dealt with whether Gray knew about the gun's location in the backseat.

"I didn't think we could fight the Fourth Amendment issue ... and even then I didn't think we could provide beyond a reasonable doubt that Mr. Gray did know the gun was in the backseat," Brotzman said, explaining why he opted to have the case dismissed after viewing the tape.

In his cross examination of Brotzman, Garrigan dissected not just the arrest video, but how it turned up in the first place.

Two letters from Gray's defense attorney, Raymond Santiago, were sent to the Warren County Prosecutor's Office, requesting any video evidence, but Brotzman testified that to his knowledge the requests were never answered. He said the prosecutor's office had been under the impression that Pagano's tape the night of the arrest wasn't working properly.

Brotzman recounted his conversation with Pagano after the tape was found, in which the sergeant said he may have had some facts about the stop incorrect. Brotzman then told him about the tape and that he had found inconsistencies. But he said he didn't go over them in detail or ask Pagano to explain himself.

Instead, he told Pagano that Gray's trial was being delayed and despite knowing that the prosecutor's office would dismiss it, did not admit that to Pagano.

"I believe I was told not to give Sgt. Pagano any details," Brotzman said. "It would be taken care of by those above my pay grade."

Garrigan had Brotzman confirm that although there was no discussion in the video about a box cutter, an item Pagano had testified caused him to go back into Gray's car, the police sergeant could have seen it during his first look in the vehicle. In that case, Brotzman said, Pagano would never have had to tell Gray why he was going back into the car.

The assistant prosecutor also agreed with Garrigan that the complex parameters surrounding search and seizure law are difficult to grasp even for an attorney -- and would be more so for a man with only a high school education, presumably referring to Pagano.

The prosecution plans to play a video this afternoon they say will prove Pagano was well aware of the laws of the Fourth Amendment and knew he had overstepped his bounds.